In what an Illinois Appellate Court described as a case of first impression in Illinois, the court reversed the Cook County asbestos judge’s dismissal of a direct claim by an employee against a former employer for a personal injury allegedly caused by inhalation of asbestos fibers during his employment. See Folta v. Ferro Eng'g, 2014 IL App (1st) 123219 (Ill. App. Ct. 1st Dist. June 27, 2014). James Folta allegedly inhaled asbestos fibers between 1966 and 1970 at Ferro Engineering, and was diagnosed with peritoneal mesothelioma 41 years later. The Illinois Workers Compensation Act has 25-year-since-exposure statute of repose (820 ILCS 305/6(d)), and the Worker’s Occupational Disease Act has a 3-year statute of repose for asbestos-related diseases (820 ILCS 310/1(f)) (a worker is entitled to compensation only if disablement occurs within three years of the worker’s last exposure).

The First District (Cook County, Chicago, Illinois) focused on one of the four recognized exceptions to the exclusive remedy provision of the Acts, namely that exclusivity does not extend to claims that are “not compensable under the Act.” See Meerbrey v. Marshall Field & Co., 139 Ill. 2d 455, 463 (1990). The other three exceptions are: (1) the injury was not accidental; (2) the injury did not arise from his employment; and (3) the injury was not received during the course of employment. See id. The court rejected the defendant’s proposed interpretation of the term “non-compensable” as being “non-compensable only if it does not rise out of and in the course of employment” because such an interpretation would render the other recognized exceptions meaningless.

The court relied in part upon a 5th District (covering Madison County) case that held that the claimed injury was non-compensable and not barred, there, a claim for emotional suffering without medical or hospital bills, or lost work. See Toothman v. Hardee's Food Sys., 304 Ill. App. 3d 521 (5th Dist., 1999). In Toothman, as in Folta, the court rejected the defendant’s argument that compensability meant “arising out of or in the course of” one’s employment.

Folta also relied upon Schusse v. Pace Suburban Bus Div. of the Reg'l Transp. Auth., 334 Ill. App. 3d 960 (1st Dist., 2002), where an employee brought a negligent spoliation claim against his employer. That decision was based upon the distinction under Illinois law between damages for spoliation and damages for the underlying injury, where the spoliation damages were not recoverable under the Acts.

The Folta court’s definition of “compensability” focused solely on the issue of recoverability, which is evident in the court’s most succinct holding, that Plaintiff’s injury was “quite literally not compensable under the Act, and that all possibility of recovery is foreclosed because of the nature of Plaintiff’s injury.” Folta, 2014 IL App (1st) 123219, at 14. The court rejected the defendant’s claim that this decision would lead to obscure results where, e.g., employees could bring a direct action against an employer in every case in which the Industrial Commission denied the workers compensation claim, explaining that the decision was limited to circumstances in which a potential claim under the Act was time-barred before the claimant learned of the claim.

Missing from the court’s opinion is any differentiation of the types of injuries and damages that the Acts were originally meant to address. For example, in Toothman, the Court held that the claim was not compensable because it was not the kind of injury that the Act recognized i.e., it was not a claim for personal injury damages supported by medical and hospital bills or other concrete damages. The same was true in Schusse, where the court explained: “Generally, only medical bills and temporary or permanent, partial or total disability are compensable under the Act,” (citing 820 ILCS 305/8) and that spoliation damages were different in kind, and therefore, not “compensable.” See Schusse, 334 Ill.Ap.3d at 968 (explaining that “the spoilation of evidence alleged in this case did not generate medical bills, require plaintiff to take time off from work, or seek work-related medical treatment”). The Folta court also did not address the potential scenario where an employer elects to forego the affirmative defense of either statue of repose in any forthcoming or pending Workers Compensation claim, thus potentially making an otherwise non-compensable claim compensable.

The import of this decision, at least absent further appellate review, is manifest, and alters the legal landscape with respect to direct claims against one’s employer for asbestos-related injuries, which frequently do not manifest until all relevant statues of repose have elapsed. Such direct claims were consistently barred in both Cook County and Madison County Illinois by the judges presiding over the respective asbestos dockets. This dramatic change portends a massive influx of new case filings and significant motion practice by current Illinois plaintiffs to seek leave to amend their pleadings to add direct employers. This, in turn, may create a whole new subset of newly-invigorated legal and factual analyses related to each employer’s relative role in the causation of the claimed injury, which plaintiffs will now be obligated to address. As of this posting, the defendant in Folta has not moved for leave to appeal to the Illinois Supreme Court.

The typical “take-home” plaintiff is a bystander such as the child who claims she was exposed to asbestos while playing in the basement where her father’s work clothes covered with asbestos dust were laundered. Across the United States, the battle lines are being drawn in these “take-home” or “household” asbestos cases. In a prior article, we examined how various courts around the country analyzed the issues of "duty" and "foreseeability" presented by these cases.

On July 8, 2013, the Maryland Court of Appeals, in a case titled Georgia-Pacific LLC v. Farrar, reversed a lower court judgment in a case involving “take-home” for “household” asbestos exposure. The court rejected the trial court’s use of a broad foreseeability standard to identify the scope of a product manufacturer’s duty. Rather, the appeals court adopted a standard that examined foreseeability based on scientific knowledge about the potential harm to non-users at the time the product was used. At the same time, the court also offered a healthy dose of skepticism whether it was even feasible to warn non-users of product dangers.

The Maryland high court relied, in part, upon a 2005 New York State Court of Appeals holding in Matter of NYC Asbestos Litigation. In that case, the plaintiff John Holdampf was employed by the Port Authority from 1960-1996 in various blue collar positions, during which time Holdampf was exposed to asbestos. Although the Port Authority offered laundry service, much of the time he opted to bring his dirty work clothes home for cleaning for reasons of convenience and because there were no showers available at work.

Elizabeth Holdampf, who washed her husband’s soiled uniforms, was diagnosed with mesothelioma in August 2001. In ruling on behalf of the Port Authority, the Court of Appeals rejected her argument that the Port Authority’s status as an employer placed it in a position to control or prevent John Holdampf from going home with asbestos-contaminated work clothes or to provide warnings to him and other employees and through them, to household members such as her.

The New York high court was also skeptical of plaintiff’s assurances that a ruling in favor of Elizabeth Holdampf would not result in “limitless liability” finding that drawing a line, once a precedent was established, would not be so easy to draw. The Court of Appeals' cautionary language concerning the risk of potentially "limitless liability" is instructive.

In sum, plaintiffs are, in effect, asking us to upset our long-settled common-law notions of an employer’s and landowner’s duties. Plaintiffs assure us that this will not lead to ‘limitless liability’ because the new duty may be confined to members of the household of the employer’s employee, or to members of the household of those who come onto the landlord’s premises.

This line is not so easy to draw, however. For example, an employer would certainly owe the new duty to an employee’s spouse (assuming the spouse lives with the employee), but probably would not owe the duty to a babysitter who takes care of children in the employee’s home five days a week. But the spouse may not have more exposure than the babysitter to whatever hazardous substances the employee may have introduced into the home from the workplace. Perhaps, for example, the babysitter (or maybe an employee of a neighborhood laundry) launders the family members’ clothes. In short … the specter of limitless liability is banished only when the class of potential plaintiffs to whom the duty is owed is circumscribed by the relationship. Here, there is no relationship between the Port Authority and [plaintiff].

Finally, we must consider the likely consequences of adopting the expanded duty urged by plaintiffs. While logic might suggest (and plaintiffs maintain) that the incidence of asbestos-related disease allegedly caused by the kind of secondhand exposure at issue in this case is rather low, experience counsels that the number of new plaintiffs’ claims would not necessarily reflect that reality

Despite the cautionary alarm sounded by the New York Court of Appeals concerning the danger of"limitless liability", New York trial courts continue to distinguish cases on their facts to permit recovery for "take-home" claimants.

On May 13, 2013, Justice Sherry Klein Heitler, the presiding judge for the New York City Asbestos Litigation, denied a motion for summary judgment brought by the Long Island Railroad (“LIRR”) in Frieder v. Long Island Railroad, a case in which the injured party, Morton Frieder, was diagnosed with mesothelioma despite having never worked hands-on with asbestos-containing materials. Frieder spent seven years working in a diner (appropriately named, as any LIRR commuter would agree, the "'Dashing Dan Diner) located within the gated premises of the LIRR’s Morris Park train repair yard, where asbestos-containing materials were used “routinely” by the LIRR.

Judge Heitler determined that while Mr. Frieder never worked hands-on with asbestos, he testified that a “couple hundred” LIRR workers would dine at the diner during breakfast, coffee breaks and lunch daily. These LIRR workers never changed out of their work clothes before eating at the diner. When they came into the diner “they would bang off their boots, take their gloves off and throw them on the counter. If they had a coat or jacket on, they would just shake it off” causing “dust all over the place” that required Mr. Frieder and other diner workers to perform “really heavy sweeping and cleanup of the diner.”

Judge Heitler ruled that the Court of Appeals holding in Holdampf could not be relied upon by the LIRR because the facts presented in Frieder were different, to wit, LIRR had control of the workplace where the dinner was located (inside the walls of the rail yard). Under this unique set of facts, she reasoned, her ruling would neither run afoul of Holdampf nor open the floodgates of "limitless liability". Based upon her discussion of the "take-home" case law, Judge Heitler appears prepared to apply the brakes to "take-home" asbestos claims in New York City.

This blog was originally posted on July 23 on the Toxic Tort Litigation Blog. Click here to read the original entry.

There is significant tension between the goals of scientific research and the demands of litigation. For scientific researchers, the amount of time required to respond to discovery takes away valuable time that might be otherwise devoted to research. Injustice and unfairness may result when a scientist, who has taken no part in litigation, is served with a lengthy subpoena requiring him to devote large chunks of time to produce the required information.

In an article published in the journal Neurology by Brad A. Racette, MD; Ann Bradley, JD; Carrie A. Wrisberg, JD; and Joel S. Perlmutter, MD, titled “The Impact of Litigation on Neurologic Research,”Neurology 67(12):2124 (Dec. 2006), the authors complain about the burden of time responding to discovery demands:

"Any hint of scientific data that support such a cause and effect relationship often encourages plaintiffs' attorneys to file suits against corporations alleging harm to their clients forcing corporations and employers to defend themselves. Both plaintiff and defendant teams hire expert witnesses who are frequently active investigators in relevant fields to bolster their positions. These legal proceedings can influence investigators and hamper research. Interactions with researchers can lead to personal financial or career gain that may bias research findings or impugn other investigators. Even researchers who have not been retained by either side of a legal dispute may be forced to respond to subpoenas for research data causing a substantial loss of research time for investigators and financial burdens on universities. Courts may require release of research records containing personal health information that could sully the trust research participants have in investigators. Litigation and its peripheral effects may bias investigators, impede research efforts, and harm research participants, thereby undermining efforts to understand the cause of neurologic disease."

Schachtman observes that the authors failed to disclose that the welder screenings for their study were funded by plaintiffs as part of an effort to solicit personal injury clients. Defendants served subpoenas to obtain the study’s underlying data only after plaintiffs’ counsel heavily relied on the authors’ study. Thus, Schachtman argues, the authors were not disinterested researchers inadvertently caught up in litigation. He states, “the authors collaborated with plaintiffs’ counsel so closely that counsel invoked litigation privileges to cloak the work in secrecy.”

In what might be characterized as a sur-reply, Dr. Racette responded that his early collaboration with the plaintiffs had been greatly overstated. Perhaps the best advice, albeit cynical, to scientific researchers may be to steer completely clear of lawyers at all costs and to avoid the temptation to be "helpful" to lawyers involved in litigation. Of course, the legal profession is the worse off if the best scientists are fearful of becoming involved in the judicial system.

How then is a court to balance the competing needs for transparency in litigation and permitting scientific researchers, often unrepresented by counsel, with the peace and tranquility necessary to perform their research? As the court observed in In Re Welding Fume Products Liability Litigation, 534 F.Supp.2d 761 (2008), Dr. Racette had performed some assessments for plaintiffs’ counsel during the nascent stages of the MDL, but later severed his ties with plaintiffs and took no more payments from them. Under these circumstances, the MDL court opted in favor of disclosure. The MDL court reasoned that where an author publishes an article with a view toward litigation, a probability of bias exists which undermines the logic supporting the admission of this material through the “learned treatise” exception to the hearsay rule. In some cases, the “learned treatise” is excluded from evidence due to the taint of suspected bias. On other occasions, the treatise is admitted but subject to impeachment on cross-examination.

The difficulty arises when a party’s expert reaches his expert opinions by relying on a study performed by a scientific researcher who is completely disinterested in the litigation. In this instance, what intrusion into this scientist’s life will be permitted? Merely because an author has reached a conclusion that dissatisfies one side or the other in litigation should not make that scientific researcher a “target” of a burdensome subpoena.

Pursuant to a very different set of facts, the Appellate Division, First Department, recently ruled in Weitz & Luxenberg v. Georgia-Pacific LLC, 2013 N.Y. Slip.Op. 04127 (6/6/13), that Georgia-Pacific must turn over for in camera review by the Court internal communications related to scientific studies it commissioned into the safety of its products. This discovery dispute arose in the context of the Weitz & Luxenberg New York City Asbestos Litigation (“NYCAL”) cases in which Georgia-Pacific is a defendant.

In 2005, Georgia-Pacific funded eight published research studies to aid in its defense of asbestos-related litigation. To facilitate this endeavor, Georgia-Pacific entered into a special employment relationship with Stewart Holm, its Director of Toxicology and Chemical Management, to perform expert consulting services under the auspices of in-house counsel, whom the Court found was significantly involved in the pre-publication process.

The studies at issue were designed to cast doubt on the capability of chrysotile asbestos to cause cancer. The Court observed that despite the extensive participation of in-house counsel, none of the articles disclosed in-house counsel’s involvement. Citing the In Re Welding Fume Products Liability Litigation, the Appellate Division determined that, “large corporations often invest strategically in research agendas whose objective is to develop a body of scientific knowledge favorable to a particular economic interest or useful for defending against particular claims of legal liability.”

In determining that the studies and related documents should be subject to in camera scrutiny, the Court stated that the trial court was rightfully wary of prejudicing plaintiffs by permitting the sudden introduction of the studies or experts on the eve of trial, or in the many other pending asbestos cases. Therefore, the principles of fairness, as well as the spirit of the Case Management Order, required more complete disclosure. The Court held that it would be inappropriate to permit Georgia-Pacific to use its expert’s conclusions as a sword by seeding the scientific literature with Georgia-Pacific-funded studies, while at the same time using the privilege as a shield, by withholding the underlying raw data that might be prone to scrutiny by the opposing party which may affect the veracity of its expert’s conclusions. In it’s in camera review, the court will evaluate whether the crime-fraud exception to the attorney-client privilege applies to certain of the client communications in dispute.

In high stakes toxic tort litigation, such as the NYCAL or Welding Fume litigations, it is not unusual for both well-heeled plaintiffs and defendants to fund studies to support their positions in litigation. In such instances, most courts will require extensive disclosure of the data underlying these studies’ findings.

However, this is very different from the situation where an independent scientist, who is uninvolved in any litigation, finds that his scientific research and underlying data is the subject of litigation scrutiny. Although some discovery may be appropriate in these instances, forcing scientific researchers to devote an inordinate amount of their time complying with litigation requests may have a chilling effect on the research community’s willingness to take on scientific challenges relating to important public health issues.

*This blog was originally posted on June 19 by Bill Ruskin on the Toxic Tort Litigation Blog. Click here to read the original entry.

The California Supreme Court has blocked an expansion of product liability law in a major decision that provides guidance for other courts facing similar questions and follows a growing trend in this area. InBarbara O’Neil, et al., v. Crane Co., et al.(#S177401; January 12, 2012) the court held that a manufacturer has no obligation to prevent harm from other manufacturers’ defective products used with its product or equipment. Even if a manufacturer could “foresee” the use of another’s defective product with its own, that manufacturer cannot be held liable in strict liability or negligence for damages caused by the other manufacturer’s defective product.

Events Leading to theO'NeilOpinion The case involved equipment installed in a U.S. Navy ship’s steam propulsion system. Twenty years later, Patrick O’Neil, a sailor assigned to work on/near the equipment, was exposed to asbestos dust from work performed on gaskets and packing embedded in the equipment and asbestos insulation covering the equipment. Forty years later, he developed a lethal cancer (mesothelioma) from these and other asbestos exposures. The plaintiffs sued the manufacturers of the equipment. However, there was no evidence the asbestos gaskets, packing or insulation from which he was exposed were manufactured, sold or distributed by the defendant equipment manufacturers. Over the 20 years since the initial installation, the original gaskets and packing had been replaced. The Navy, in most instances, specified asbestos replacement gaskets, packing and insulation.

At trial, the defendant manufacturers moved for nonsuit saying they were not liable because plaintiffs did not introduce any evidence that their equipment was defective and it did not cause Mr. O’Neil’s cancer. Defendants argued that if gaskets, packing and insulation in and on their equipment were a cause of Mr. O’Neil’s cancer, the defendant equipment manufacturers were not responsible because the asbestos-containing replacement products were designed, manufactured or sold by others.

The plaintiffs countered it was “foreseeable” Mr. O’Neil would be exposed to gaskets, packing and insulation in and on the defendant manufacturers’ equipment. They argued that the equipment was originally sold with asbestos gaskets and packing; that the defendant manufacturers knew users would cover the equipment in asbestos insulation; and, that the defendant manufacturers knew that asbestos replacement gaskets and packing would be used with their equipment. The trial court did not agree with plaintiffs and granted the motions for nonsuit finding there was no evidence the equipment was defective because of the asbestos content and determined that defendants’ equipment did not contribute to the cause of the mesothelioma.

However, the California Court of Appeal reversed. It held the defendant manufacturers are liable “for dangerous products with which [their] productwillnecessarilybe used.” (All emphases added.) The court of appeal made no distinction as to which entity was responsible for design, manufacture or distribution of the defective asbestos products from which Mr. O’Neil was exposed. The court of appeal reasoned that because the defendants’ equipment originally included defective asbestos gaskets and packing and knew that they would need to be replaced with asbestos gaskets and packing made by others, they owed a duty to warn. Moreover, the equipment itself was deemed to be defective, not only because of a failure to warn, but also because their equipment “required” asbestos packing, gaskets and insulation.

Supreme Court's Ruling and Policy Holdings The California Supreme Court reversed the court of appeal. It found no facts in the record that supported the assertion that defendant manufacturers required asbestos replacement gaskets, packing or insulation. There was no evidence the defendant manufacturers’ equipment depended on asbestos materials to operate. The court stated: “Mere compatibility for use with such components [asbestos containing parts] is not enough to render them defective.” The court concluded that defendants were not liable because their products were not “a legal cause” of the plaintiffs’ injury in strict liability or negligence. Moreover, defendants “had no duty to warn of risks arising fromother manufacturers’products.” (emphasis in original).

Policy The supreme court found the court of appeal’s decision to be an unwarranted expansion of California product liability law: “(W)e have never held that these responsibilities [under California law] extend to preventing injuries byotherproducts that might foreseeably be used in conjunction with a defendant’s product” (emphasis in original). Whether to apply strict product liability doctrine “in a new setting is largely determined by the policies underlying the doctrine...”. “’[T]he strict liability doctrine derives from judicially perceived public policy considerations and therefore should not be expanded beyond the purview of these policies.’” The court revisited its 1963 decision in Greenman v. Yuba Power Products, Inc.(1963) 59 Cal.2d 57, 63, quoting: “’The purpose of such liability is to insure that the costs of injuries resulting from defective products are borne by the manufacturers that put such products on the market…’” A year later the California Supreme Court extended the strict liability doctrine to retailers as “’an integral part of the overall producing and marketing enterprise.’”Vandermark v. Ford Motor Co.(1964) 61 Cal 2d 256, 262.

Stream of Commerce The “marketing enterprise” or “stream of commerce” policy consideration is one of two themes at the backbone of the supreme court’s decision inO’Neil.Where product manufacturers “generally ha[ve] no 'continuing business relationship' with each other," they cannot bear responsibility for other manufacturers’ products. They “cannot be expected to exert pressure on other manufacturers to make their products safe and will not be able to share the costs of ensuring product safety with these manufacturers.” The court said it is “also unfair” to require a manufacturer to “shoulder a burden of liability” for another manufacturer’s product where it “derives no economic benefit from the sale of the product that injured the plaintiff.” A contrary rule would require manufacturers “to investigate the potential risks of all products and replacement parts that might be foreseeably used with their own products and warn about the risks.” This would “impose on manufacturers the responsibility and costs of becoming experts in the manufacturers’ product.” This, it said, is “an excessive and unrealistic burden.” Such a rule could also act “perversely” by “inundating users with excessive warnings” and, quoting New Jersey jurisprudence, “[t]o warn of all potential dangers is to warn of nothing.”

Defendant's Act or Control An even more fundamental policy lies at the heart of this opinion: Liability is not imposed for an injury unless it was caused “by an act or instrumentality under defendant’s control.” Theoriginalasbestos gaskets and packing that defendant manufacturers sold with the equipment were gone when Mr. O’Neil was exposed to asbestos from replacement gaskets and packing manufactured by others.

TheO’Neilopinion (together with two other cases also on appeal and resolved by theO’Neilopinion) stands for the proposition that there is nolegal causationfor the original product manufacturer where the defective aftermarket replacement part is the source of the harm, even though: (1) The equipment manufacturerdesignsthe equipment for use with the defective aftermarket product (e.g., asbestos in replacement gaskets and packing); (2) The manufacturerspecifiesthe use of replacement parts with the same defect; (3) The manufacturer alsosuppliesreplacement parts with the defect in question; (4) The manufacturerknowsthat the purchaser of their equipment or product requires that the original equipment contain the defective component and use of the defective replacement part.

Liability Is Not Foreclosed Likely due to the variety of economic entanglements product manufacturers may have with aftermarket manufacturers’ products, the supreme court conceived of circumstances where liability for another manufacturer’s parts could arise. The court stated in theO’Neil opinion’s opening paragraph that a manufacturer may be held liable for harm caused by another manufacturer’s product where (1) the defendant manufacturer’s own product, although not defective, “contributed substantially” to the harm, or (2) the defendant manufacturer’s (non-defective) product “participated substantially in creating a harmful combined use of the products.” TheO’Neil court discusses two appellate cases where the manufacturer’s product would not have been put “into the stream of commerce” but for the manufacturer’s economically beneficial participation in the product that eventually gave rise to the harm.

Additionally, in a footnote (Fn. 6) the court outlined a hypothetical where a “stronger argument for liability might be made.” If the product/equipment “requiredthe use of a defective product in order to operate” (emphasis in original), the original manufacturer’s product would incorporate the defect and every replacement part would too. The defective replacement parts, though manufactured by others, “would not break the chain of causation.” However, the court warned that in these circumstances, “the policy rationales against imposing liability on a manufacturer for a defective part it did not produce or supply would remain.”

Conclusion

The California Supreme Court appears to have drawn clear rules for precluding liability where an original manufacturer’s product has left its possession or control, but an aftermarket replacement part has ensnared the original equipment manufacturer in litigation. Where the manufacturer does not control or derive direct economic benefit from the defective aftermarket product, it will not be liable. However, the opinion does not build an impregnable wall. The court specifies that an original manufacturer will be liable for another manufacturer’s parts, where the original product contributes substantially or participates in a combined product causing harm. Even under those scenarios, however, imposing liability must not run afoul of the policy rationales supporting theO’Neilopinion.

Union Carbide’s motion was filed in conjunction with a petition to disqualify the trial judge on grounds that the judge’s father had “lived with a diagnosis of asbestosis for over 20 years and has filed not one – but two – asbestos personal injury lawsuits” against defendants whose products incorporated the very same asbestos materials at issue in the pending case. One of these personal injury cases is apparently still pending, while the judge’s father apparently “settled his asbestos claims with Petitioner UCC” in the other. According to Union Carbide’s petition, during the jury selection phase, the trial judge agreed to strike potential jurors for cause who had the same kind of familial involvement with asbestos personal injury litigation, yet the trial judge said nothing about his own family’s involvement. Defendants did not learn of this fact until the judge made a casual off-record comment in chambers two weeks into the trial.

The petition to disqualify alleges that under Canon 3 of the Code of Judicial Conduct, a reasonable person might doubt the trial judge’s impartiality in the case, evidenced by not only the fact that he did not notify parties of his family’s involvement with this litigation, but also by the judge’s conduct throughout the trial. For example, the judge’s demeanor was characterized as “openly hostile” to defendants’ counsel. The judge refused to change venues despite a demonstrated community bias against asbestos defendants in Smith County; and, he allegedly made a number of comments in open court throughout the trial that could have affected the jury’s consideration of the evidence. Union Carbide initially filed a motion for recusal at the trial court level, but at least 30 days later, the trial judge had yet to respond, prompting Union Carbide to seek relief from a higher court.

The Mississippi Supreme Court’s ruling means that the whopping verdict will be on hold until the motion for recusal, or the petition for disqualification, is resolved. Time will tell whether the high court agrees with Union Carbide’s assertion that based upon the evidence described in Union Carbide’s petition, a “reasonable person knowing all of the facts and/or considering the totality of the circumstances “might” harbor doubts about the judge’s impartiality,” which Union Carbide presents as the standard for compulsory recusal. If so, the court could vacate the judgment against Union Carbide, and set-aside the pre-trial proceedings over which the judge presided, effectively granting all parties a do-over. Even if the verdict stands, it is likely that Mississippi’s statutory punitive damages cap will reduce the $300 million punitive damages award to $20 million against each defendant.

Practitioners are well aware that given the “elephantine mass” of asbestos cases filed throughout the last half-century and around the nation, one may be hard-pressed to find jurors who have never had any connection with asbestos litigation, at least somewhere across their family tree. There is no reason to believe that the same would not be true for judges, and perhaps even more so, given the potential that a prior legal practice may have touched upon the same types of claims [a potential source of bias that has caused at least one judge in a jurisdiction with significant asbestos litigation to voluntarily recuse himself in any asbestos case if requested]. However, answering the question of “how close is too close” to asbestos litigation to warrant a jury strike for cause or otherwise should be a far different analysis than for judicial recusal, where even the appearance of impropriety is a cause for concern, especially given that litigants have virtually no ability to learn of potential sources of bias - like the kind that would warrant the striking of a juror for cause - unless it is volunteered by the trial judge. Even given such potential bias, it is not clear whether this would be sufficient in and of itself to warrant the disqualification of a trial judge, given the judge’s far different role than that of a juror, and given the expectation that judges are well able to impartially preside over cases independent of any personal experience. Mississippi’s high court may soon provide much-needed guidance regarding this question, depending upon the method the Court chooses to resolve this issue.

On June 11, 2009, the California Supreme Court declined to review Taylor v. Elliott Turbomachinery Co. (2009) 171 Cal.App.4th 564, leaving the Second District of California's appellate decision delivered in February 2009 in place. The long-awaited Taylor appellate decision – which, simply put, held that a defendant is only liable for products that it manufactured or supplied – has left California trial judges and attorneys scrambling to map out the new playing field in asbestos litigation.

Plaintiffs alleged that decedent Reginald Taylor was exposed to asbestos-containing products while working in the U.S. Navy during the 1960s. Multiple defendant corporations supplied the U.S. Navy with various pieces of equipment utilized in ship propulsion systems, and some of the equipment had asbestos-containing parts. The asbestos-containing products to which Mr. Taylor was exposed (such as insulation and some replacement gaskets and packing) were used on or near the defendant’s equipment, but were manufactured and supplied by third parties, not by the defendants. Plaintiffs argued that because the use of these other products was foreseeable, defendants should be liable. Several defendants, including Crane Co., Elliot Turbomachinery, Inc., IMO Industries, Inc., Ingersoll-Rand Company and Leslie Controls, Inc., argued that liability should be limited to those in the chain of distribution of the products that contained asbestos.

Agreeing with this position, the trial court granted summary judgment in favor of defendants and the court of appeal affirmed. Recognizing the “bright-line legal distinction tied to the injury-producing product in the stream of commerce,” Taylor held that “[i]t is a plaintiff's burden to produce evidence ... linking the injury-producing product with a particular entity in the stream of commerce of that product.” “[A] manufacturer has no duty to warn of defects in products supplied by others unless the manufacturer's product itself causes or creates the risk of harm.”

Taylor held that foreseeability was "not synonymous with duty, nor is it a substitute,” and that in any event, foreseeability had to be considered more narrowly than plaintiffs argued. The proper foreseeability focus was not whether the products would be used together, but whether “the harm to [this] plaintiff” was foreseeable, which was not shown here given the decades of time between providing the equipment and the time the plaintiff/decedent had been exposed.

For now, plaintiffs have pivoted away from their traditional focus pursuing “failure to warn” claims against equipment defendants. Instead, the new focus is on the equipment manufacturers’ alleged “design defect” of incorporating asbestos-containing components into their equipment. Plaintiffs argue that equipment defendants designed their products to use asbestos-containing parts and that the future use of replacement parts was in conformity with the design. Therefore, the equipment defendant is responsible for the replacement gasket and packing and even the external flange gasket and thermal insulation. Plaintiffs have had some initial success getting to a jury with their new strategy, but there are certain to be attempts to extend Taylor to design defect claims in the very near future.

The Illinois Supreme Court has issues an important new decision affecting proximate cause in Asbestos and related matters. This ruling will have significant impact in toxic tort matters. The case of Nolan v. Weil-McLain, No. 103137 (April 16, 2009) must be read by all who practice in this area.

Proximate cause is an element of all tort cases. In asbestos cases, a recent decision by the U.S. Sixth Circuit has favorable implications for the issues of causation and take-home exposure. See Martin v Cincinnati Gas & Elec.Co., No. 07-6485, 2009 U.S. App. LEXIS 1702 (6th Cir. Jan. 27, 2009). In that case, the plaintiff’s father had worked with underground power lines that contained asbestos during a period from 1951 to 1963. The plaintiff, who was born in 1952, claimed exposure to asbestos carried home on work clothes his father wore home, as well as from the plaintiff’s own exposure as a welder and mechanic from 1979 to 1984. The district court, applying Kentucky law, granted summary judgment to GM for lack of substantial factor causation when the plaintiff was a mechanic, and to CG&E and GE, the father’s employer and supplier, for a lack of duty to the plaintiff for the take-home exposure.

As to causation, the court noted that Kentucky law requires that asbestos exposure from a defendant’s product be a substantial factor in causing the injury. The plaintiff argued that, “because mesothelioma is a progressive disease, any exposure is a substantial cause.” The Sixth Circuit rejected this argument, which has worked in many jurisdictions. The court noted, “[y]et one measure of whether an action is a substantial factor is ‘the number of other factors which contribute in producing the harm and the extent of the effect which they have in producing it.’” Id. (quoting RESTATEMENT (SECOND) OF TORTS § 433(a)). Also noting its earlier decision, Lindstrom v. A-C Product Liability Trust, 424 F.3d 488, 493 (6th Cir. 2005), the court observed that to hold “any exposure is a substantial cause” would render the substantial factor test “meaningless.” Summary judgment thus was upheld on the issue of causation.

As to take-home liability, whether CG&E and GE owed the plaintiff a duty of care under Kentucky law turned on foreseeability in light of what the defendants knew or should have known at the relevant times. Specifically, the plaintiff had to show that each defendant “knew or should have known the danger of bystander asbestos exposure” when it provided asbestos-containing products to the defendant’s father. In cases like this, plaintiffs’ experts rely upon published scientific papers to show that the hazards of asbestos were knowable years before the exposure in a given case, thereby making the danger foreseeable.

The Sixth Circuit, however, framed the issue under Kentucky law more precisely, finding that Kentucky law imposes upon the defendant a duty to have “knowledge of pertinent matters . . . as a reasonable man would have.” Id. (citing Pathways, Inc. v. Hammons, 113 S.W.3d 85, 90 (Ky. 2003) (quoting RESTATEMENT (SECOND) OF TORTS § 289(a))). This knowledge includes the “capacities of things and forces in so far as they are matters of common knowledge at the time and in the community.” Id. (quoting RESTATEMENT (SECOND) OF TORTS § 289(a)). 1

The plaintiff had no evidence that CG&E or GE had actual knowledge of the danger of take-home exposure during the relevant time periods – 1937 to 1955 when GE supplied asbestos products, 1951 to 1963 when CG&E employed plaintiff’s father. The plaintiff instead tried to prove constructive knowledge through published reports and studies. A 1911 study and subsequent ones in the 1930s only were concerned with neighbors of asbestos factories. Plaintiff’s expert also opined that there was knowledge of the hazard in the 1950s, but he conceded “that the first studies of bystander exposure were not published until 1965.” The court concluded that “[w]ithout any published studies or any evidence of industry knowledge of bystander exposure, there is nothing that would justify charging CG&E or GE with such knowledge during the time that Mr. Martin’s father was working with asbestos.”

Beyond the general fact that the Sixth Circuit upheld summary judgment on the issues of causation and take-home exposure, the decision is important to all jurisdictions. It suggests defendants would be well advised to use well-established tort concepts in conjunction with a careful reading of the Restatement in order to bring common sense back into the courtroom. That approach here lead to an outright rejection of de minimis asbestos exposure as adequate evidence of causation. It also resulted in premises and supplier defendants being relieved of liability to bystanders when there was a complete lack of evidence that a reasonable person would have recognized that harm to bystanders was foreseeable at the time when the exposure occurred.

The outcome reached in Martin was aided by the amicus brief of Mark Behrens, partner at Shook, Hardy & Bacon, on behalf of the Coalition for Litigation Justice and other interested parties. The brief focused on the take-home exposure side of the case, but Mr. Behrens also has contributed to the body of arguments against de minimis exposure, namely an article he recently coauthored with William Anderson – The "Any Exposure" Theory An Unsound Basis for Asbestos Causation and Expert Testimony, 37 S.U. L. REV. 479 (2008). It finally should be noted that the Martin decision is unpublished but citation is permitted as long as the decision is attached to the brief. See FRAP 32.1; 6 Cir. R. 28(f).